The opinion of the court was delivered by: JOHN FACCIOLA, Magistrate Judge
This is a Title VII action against the Office of the Senate
During the course of the deposition of a witness named Alvin Macon,
plaintiffs counsel posed four questions to which objection was made. As
the matter now stands, defendant's counsel has withdrawn the objection to
two of the four questions and the dispute centers on the remaining two
questions. This dispute has now generated 78 pages of pleadings or 39
pages per question. That must the break old record. Since there has been
so much heat and so little light, I must first elucidate the principles
pertaining to the attorney-client and work product privileges when the
defendant is a government agency.
The Attorney-Client Privilege
The attorney-client privilege in this Circuit shields what the client
tells an attorney in confidence for the purpose of securing legal advice
or legal services. As I have stated:
I have discussed the attorney-client privilege in
several of my previous opinions. The fundamental
premise of all of them is that
the communication must have been made to "a member
of the bar of a court" who "in connection with
th[e] communication is acting as a lawyer" and the
communication must have been made for the purpose
of securing either an opinion on law, legal
services, or assistance in some legal proceeding.
In re Sealed Case, 737 F.2d 94. 98-99
(D.C. Cir. 1984). The privilege only applies
when the information is the product of an
attorney-client relationship and is maintained as
confidential between the attorney and client.
Brinton v. Department of State. 636 F.2d 600.
603 (D.C. Cir. 1980). cert denied. 452 U.S. 905.
101 S.Ct. 3030. 69 L.Ed.2d 405 (1981).
The mere showing that the communication was from
the client to the attorney does not suffice.
United States v. Western Electric Co.,
132 F.R.D. 1. 3 (D.D.C.1990). The standard
applied is to determine whether the client
reasonably intended the attorney to keep the
communication confidential. In re Ampicillin
Antitrust Litigation, 81 F.R.D. 377. 389
(D.D.C.1978) ("[I]n order for the privilege
to apply the client's communications must be made
with the intention of confidentiality . . .");
Overseas Private Investment Corporation v.
Mandelbaum, Civ.A. No. 97-1138, Memorandum Opinion
at 6, December 15, 1998, (The privilege insulates
from disclosure those communications between a
client and his attorney in which the client
enjoyed a reasonable belief that what he shared
with counsel would remain confidential.).
Thus, the relevant inquiry for the set of
documents containing communications from the
client to the attorney is whether the
communications made by Nextel to its attorneys
were for the purposes of seeking legal advice,
whether Nextel had a reasonable belief that the
communication was confidential, and whether the
disclosure of this communication would tend to
reveal this confidential information. The
attorney-client privilege also protects
communications from the attorney to the client but
only insofar as the attorney's communication
discloses a confidential communication from the
client. Evans v. Atwood, 177 F.R.D. 1, 3
(D.D.C.1997), (citing Brinton v. Department
of State, 636 F.2d 600, 603-604 (D.C. Cir. 1980)).
United States v. Motorola. 1999 WL 552553 (D.D.C. May 28.
An attorney-client relationship may exist between an institution or
organization and its counsel. A corporation may claim an attorney-client
privilege for confidential communications
made by its employees to corporate counsel in order to permit
counsel to render legal services or legal advise to the corporation.
There is no doubt that government agencies have the same privilege.
Evans v. Atwood, 177 F.R.D. 1. 3 (D.D.C. 1997), (citing
Tax Analysts v. IRS, 117 F.3d 607. 617 (D.C. Cir. 1997)).
The Work Product Privilege
Attorneys can also claim, on behalf of their clients, a privilege
against disclosure of their work product. That privilege takes two forms.
Fed.R.Civ.P. 26(b)(4) protects from disclosure a document prepared
by a party or her agent, including her attorney, for trial or in
anticipation of litigation. While the document may lose a portion of its
protection upon a showing of substantial need and the inability to secure
a substantial equivalent, the "mental impressions, conclusions, opinions
or legal theories of an attorney . . . concerning the litigation" are
never to be disclosed. Fed.R.Civ.P. 26(b)(3). Hence, the
attorney-client privilege may yield to several exceptions, but the work
product privilege is, in this sense, inviolate.
The federal courts also protect work product even if it has not been
memorialized in a document. Questions of a witness that would disclose
counsel's mental impressions, conclusions, opinions or legal theories may
be interdicted to protect "intangible work product." Sadowski v.
Gudmundsson, 206 F.R.D. 25 (D.D.C. 2002): Neese v. Pittman,